Statement made in open court on the sentencing certain offenders at the February 2001 Assizes at Kingstown in St Vincent and the Grenadines1
 The law of this country is that there are certain offences which are so serious that the penalty for committing them should be a sentence of imprisonment. In prison, it is intended that the convicted person can learn the discipline and rules of good conduct that he missed out on in his earlier years. The end product of a prison is that when the inmate leaves it he should have become a disciplined, useful and productive member of society.
 In order for a judge to be able to sentence a person to a term of imprisonment, there must of necessity be a prison. A prison is a place of isolation from the community, where persons who seriously offend against the laws of the community are sent as a punishment and for rehabilitation.
 When a person is sentenced to a term of imprisonment, that confinement in a prison constitutes the punishment. A person who is imprisoned has his liberty taken away from him. He has to obey strict rules that limit his previous freedom. It is the simple deprivation of liberty and the other restrictions on his previous freedom that is the punishment of imprisonment. That is the only punishment a man should suffer when he is imprisoned. Anything else is illegal.
 In any country that lays claim to be civilized, the minimum provision for judicial custody involves that, in addition to any necessary “high-security facility,” there must exist some separate suitable safe rehabilitative prison facility for non-violent prisoners to be housed in and to serve out the term of their sentence.
 Persons who have been remanded in custody to come up for their trial have not yet been convicted of any offence. Under our system of justice, they are presumed to be innocent until found guilty by a court. These persons on remand should not be mixed in with hardened criminals for the obvious reasons. As a basic minimum they are always expected to be detained in quarters that are separate from the most serious offenders who have been sentenced to long terms of imprisonment. It may even be considered illegal for persons on remand to be housed in the same quarters as convicted prisoners, and to be subject to the same conditions as convicted prisoners.
 Having heard the frequent stories, and read the ongoing newspaper articles, of gang rule, gang rapes, beatings, knifings and murders, drugs and alcohol, in Her Majesty’s Prison in Kingstown, I was curious as to whether there is in fact a prison in St Vincent and the Grenadines to which a judge could properly sentence a person as punishment for having committed a serious criminal offence for which a term or imprisonment would be an appropriate sentence.
 I have been over to inspect Her Majesty’s Prison in Kingstown. The warders have shown me every room and facility that exists in the male prison in Kingstown. I have spoken both to warders and to prisoners who have been free in describing conditions in the prison.
 It seems that the Prison was originally built to accommodate less than 100 persons. With the various additions that have been built recently, it can hold an absolute maximum of 250 persons. It presently houses some 300 persons. Conditions have been improving under the present Superintendent and his staff, who have brought the numbers down from a recent high of 450 prisoners, but the Prison remains severely overcrowded. Most of the prisoners are housed 40 men at a time into the typical cell. The smallest cell is death row. Death row is a room in which the 5 men who have been convicted of death are presently housed in dormitory conditions. There are no single cells. Even the old punishment cell has been converted into use as a regular cell. The root cause of the problems in the prison may be laid down to this one problem of excessive numbers in too small a place. Until that problem is solved, it may prove difficult to improve conditions.
 The prison is presently very unhygienic. The conditions at night with such large numbers of men in each cell can hardly be imagined. Many of the cells have neither working toilets nor showers. There are some toilets, but many of these have been damaged in violent incidents in the cells. The men in each cell without a toilet must defecate and urinate in buckets placed on the floor of the cell. These buckets must wait until the following morning to be emptied. The Warders and prisoners have described the odour in each cell in the night as unbearable. In the prison courtyard, and available for day-time use by all 300 prisoners, there is one large open pit latrine. The men must use this squatting shoulder to shoulder. Most of the cells have a shower for use during the night. During the day the men shower in the open courtyard in full view of other prisoners.
 Violence in the prison is endemic. Persons are frequently and routinely beaten by other prisoners for real or imagined offences, until their bones are broken. I have personally seen persons in the Prison with terrible injuries suffered within the previous 24 hours before I arrived. Knifings and stabbings I am assured, and I accept, are commonplace. Each prisoner, I have been assured, must expect to be stabbed sometime during his sentence. Some security is found only within a gang.
 Within the past month, 2 prisoners who were implicated in the injuring of the popular Superintendent of Prisons were murdered by a large gang of prisoners. After the incident, they had been locked by the Warders in the one safe cell in the Prison for their own protection. In spite of this, their locked door was broken open and their throats were cut. Any prisoner who leaves prison at the end of his term, and who does not throw weapons, drugs and alcohol over the prison wall for use by his gang, will be beaten severely if, as frequently happens, he should ever return to the prison. As a result, rum, drugs, and weapons proliferate in the prison. Every young and new prisoner entering the prison population is beaten until he gives up his shoes, shirts and trousers. Sporadic and infrequent searches by the police do not touch the tip of the iceberg of weapons and drugs circulating in the prison.
 The danger is aggravated as violent psychotic patients are housed with the general prisoners. There are no separate facilities for housing and treating violent psychotic patients. These persons are stored in the general prison population with little treatment and no hope of recovery. It was one such psychotic patient who is alleged to have recently stabbed the Superintendent of Prisons and who was one of the two prisoners murdered.
 Sexual violence is pervasive. I have been told that about 50% of the men engage in sexual activity. Any young person who is sent to prison is continuously harassed by certain aggressive homosexual predators. Young prisoners are in constant danger of rape during the day and at night. Rape of young and unwilling prisoners is a common practice in the prison. The gang-leaders and warders to whom I talked assure me that any child molester, rapist, or other sex offender sentenced to prison is guaranteed repeated gang-rape, beatings, stabbings, and worse. There is nothing the Warders can do to protect such prisoners from abuse. Some security is found only in being a member of a gang.
 The Warders and prisoners estimate that over 40% of the men in prison today are HIV-positive. This is an unscientific estimate. However, no HIV testing is done routinely to discover the rate of infection. Cases of TB exist in the prison. TB is today most frequently associated with the terminal stages of Aids. It is an infectious disease, and a serious health risk for all prisoners and Warders exposed to it. Given the violence in the prison, HIV infection is a risk for Warders as well as other prisoners. The seriously ill prisoner cannot be isolated in a prison such as we have in St Vincent. There are no facilities for such care. Condoms, which are an obvious, safe and inexpensive aid in alleviating the problem, are not available to the prisoners because of morality concerns.
 There is no recreational facility in the prison. There is no space in the prison for anything more than one ping-pong table out in the tiny general courtyard. There are no sports, no magazines, no TV, no radio, no education, no rehabilitation, no recreation, and very little constructive activity. There is no recreation room, nor any recreation equipment of any kind. The original prison chapel has been converted into 3 cells. After the men have been let out of their cells each morning, all that the men can do all day long while they are in prison is to sit around. They have nothing to do except to discuss the various crimes for which they have been convicted, and the techniques of evasion and escape. The prison is a university of crime.
 There is no room, nor any hope that room can be found in the present facility to separate out the men into different groups. Men on remand but not yet convicted of any offence are routinely housed in the general population of convicts. Men convicted of the most serious offences of manslaughter, rape, unlawful wounding, and burglary mix freely with non-violent offenders and persons remanded into custody but not yet convicted of any crime. Young men are housed in the same cells as older, predatory homosexual rapists. Only membership in a gang affords any protection.
 All cooking of meals in Her Majesty’s Prison is done on open wood fires in a kitchen shed. The prisoners’ food is prepared in the same sort of iron utensils suspended over a wood fire as were used in the West Indies in days of slavery to manufacture muscovado sugar. The Superintendent presently has under construction a fine modern kitchen, and I hope that one day it will become operational. The present cooking conditions, however, are unacceptable for human beings.
 There is no clinic or hospital room in the prison. Prisoners who have been stabbed or had limbs broken in beatings have to wait until transport can be found to carry them under guard to the Hospital. The Superintendent presently has certain masons and carpenters among the prisoners constructing a small clinic in the Prison. I hope that one day it will be furnished and become operational.
 There is, generally speaking, no work that the imprisoned men in the Kingstown Prison are provided with that will result in their earning any money for use when they are released from prison. The Prison Keepers personally assist a few favoured prisoners in getting work and in opening bank accounts to save their earnings. But, the mass of prisoners have absolutely nothing constructive to do all day long for the entire term of their sentence. They are released eventually from prison with the barest of clothing, and not a penny in their pockets, and with no hope of integration back into society.
 Warders are underpaid, under-staffed, and over-worked in the most horrible and dangerous of conditions. Requests by the prison management for an increase in staffing and an improvement in conditions to relieve the situation have gone unheeded. No training of warders has been possible for a very long time. I am told that the prison cannot take up the offers of training as they become available because, if several warders go to a training session, the prisoners must be confined to their cells and mayhem would rule.
 The illiteracy rate in St Vincent is variously given as anywhere between 10% to 50%, depending on the age group considered. Young people make up the majority of the prison population. Amongst this group I understand that the illiteracy rate is nearer the 10% range. Yet, the warders and prisoners are in agreement that in prison only about 5% of all prisoners can read or write. This suggests that only the poorest and most disadvantaged members of Vincentian society are being sent to prison. Prison is a place where offenders from the poorest and most defenceless class of persons are routinely thrown away and forgotten. If this is true, then the Prison of St Vincent and the Grenadines is a feature of some of the most oppressive forms of discrimination, exploitation, and disadvantage. Anyone with money, no matter how serious his offence, can, it seems, hire the best defence to keep out of prison. Prison is not an option for criminal offenders from the middle class of this State. It may well be that conditions in the prison cannot reasonably be expected to be improved until large numbers of the middle class are committed to it. Only then is it likely that the conditions in the prison will become a matter of concern for those in authority.
 A real prison is not a place where a person is meant to be sent to be subject to inhuman punishment. A man is not sent to prison to be repeatedly beaten, stabbed, raped, exposed to fatal and incurable diseases, and eventually murdered. We have abolished torture and humiliation in St Vincent and the Grenadines. It is illegal in this State to subject a person to conditions of torture.
 It is not acceptable that prison is a place where class differences are enshrined and exaggerated. It is unacceptable that prison is treated merely as a place to discard the throw-away members of the poorest class of Vincentians.
 The near 50% of the men in the prison who are engaged in homosexual acts are presumably not by nature homosexuals. They are in reality heterosexuals, pressed, in some cases by threats and acts of violence, into homosexual acts. It has been observed that many of them are pressured by the urges of human nature, inevitable among young men and in situations of large numbers of men forced into intimate contact with no diversion of any kind, into homosexual acts. When these men get out of prison, a large proportion of them, nearly 40% I am told, will be HIV positive. They will re-enter Vincentian society. They resume co-habitation with their wives and girlfriends. When they later return to prison, as is only too common, their now HIV-positive girlfriends will find new sex partners in the community. It cannot be surprising that we hear on the radio and TV that St Vincent presently has one of the highest HIV-positive ratings of all the States in the OECS. The prison is a festering ground for HIV infection.
 As a result of all the above, I have some doubt that there exists at present in the State of St Vincent and the Grenadines a prison to which I may properly sentence any man to a term of imprisonment as a punishment for any offence, no matter how severe.
 Until conditions change, it would appear that a judge should have serious concerns in sentencing to be confined in Her Majesty’s prison in Kingstown any those men who are such a clear and present life-threatening danger to their community that they cannot as a matter of public safety be allowed to remain at liberty. The confinement in such a case will serve the purpose of protecting society, not of constituting a punishment for the convicted person in question.
 Given the conditions described above, the question arises whether it is proper to remand persons not yet convicted of any offence to Her Majesty’s Prison in Kingstown. It would seem that the safest course of action for me to follow in dealing with persons who would normally be expected to be placed on remand, until I shall have been satisfied that a suitable facility has been made available, might be to release all such persons on bail with suitable conditions as may appear appropriate in each case.
 It is in the light of the above that I now propose to consider what other options exist by way of penalties for persons convicted of serious criminal charges in St Vincent and the Grenadines.
 The law provides for fines to be imposed. St Vincent and the Grenadines is one of the poorest nations in the Western Hemisphere. Unemployment and illiteracy rates are high, particularly in the rural areas. Many of the persons who appear before the court are unemployed. They do not possess any income, savings, valuable possessions, or other reserves to be able to pay a fine. When a fine is not paid the Magistrate or Judge issues a warrant to pick up the person and commit him to prison for not paying the fine. The police know that the fine was not paid due to poverty, not malice. The result is that hundreds of outstanding warrants are quietly stored in a desk drawer. The police have not been able to execute the warrants. They are only too well aware that there is no room in the prison for these defaulters. In these cases, where poor persons have been fined, no real penalty has been imposed, because the men fined know that they will not be picked up when they fail to pay the fines and warrants are issued for their arrest. One has to question whether the option of ordering a fine or compensation to be paid by someone who is not clearly able to pay the fine is realistically open.
 The Probation Department exists under the Probation of Offenders Act. The officers of that Department have explained to me that they have the title of Probation Officers. The Probation Officers have many duties. They take care of all cases of child abuse, poor relief, abused women, and all welfare matters in the State. Their duties are much more extensive than mere Probation Officers. The Department has an office in Kingstown, but no extension workers in the outlying districts. They have no office transport to get to probationers inside, far less outside, Kingstown. They lack any other facilities to assist in carrying out probation duties. The office is presently severely understaffed for the existing welfare work. Only counselling is offered to persons on probation, no supervision of any kind is possible. If a court puts a person in Kingstown on probation, then if that person happens to drop by the office, he will receive a little counselling. If he lives in the country and cannot drop by the office, then no counselling or supervision of any kind can be carried out. One has to ask whether probation orders are not, then, an entire waste of time. Can a court properly impose the duties of probation on such heavily overworked officers who lack the most basic means to carry out the order of the court? There is a basic rule that a court should not make an order that it knows is incapable of being carried out.
 Community Service Orders have been under discussion for some time now. I understand that the proposed legislation for community service orders is not yet in place. Only the traditional sentences exist.
 The remaining traditional sentences provided for by law include:
- supervision order: s.20
- payment of compensation: s.27
- payment of costs of the prosecution: s.27
- suspended sentence: s.30
- forfeiture of the proceeds of crime: s.32
- forfeiture of articles involved in the offence: s.33
- security for keeping the peace: s.34
- security for coming up for judgment: s.35
- discharge without punishment: s.37
- restitution: s.238
- corporal punishment under Corporal Punishment of Juveniles Act
 These limited varieties of sentences will have to be imaginatively applied by the Court until such time as the Legislature of St Vincent and the Grenadines provides the Court with more varied and modern options for sentencing of offenders for non-capital offences.
16 February 2001
1 Statement made on imposing a suspended sentence of three years imprisonment to various young men. They had been separately charged with offences of murder. They were of previous good character. Their pleas of guilty to the lesser offence of manslaughter had been accepted by the prosecution and by the court. The court explained that they were being sentenced to three years because that was the maximum which the court could suspend. This statement may have contributed to a subsequent initiative of Prime Minister Gonsalves to built a new prison outside of Kingstown.